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FEDERAL SUPREME COURT OF NIGERIA
25TH APRIL, 1958.
BEFORE THEIR LORDSHIPS
M.C. NAGEON DE LESTANG, AG. F.C.J. (Presided)
SIR HENLEY COUSSEY, AG. F.J.
GEORGE FREDERICK DOVE-EDWIN, AG. F.J. (Read the Judgment of the Court)
PRACTICE AND PROCEDURE – RESJUDICATA – Operation of res judicata in same parties and same claim.
PRACTICE AND PROCEDURE – COURT – Reviewing previous judgment not appealed against – Improper
DOVE-EDWIN, Ag. F. J. (Delivering the Judgment of the Court):
This is an appeal from the judgment of the High Court of the Western Region holden at Ibadan and dated the 18th December, 1956, upholding a plea of Res Judicata set up by the defence. The grounds of appeal filed were as follows:
An application by appellant to call fresh evidence at the hearing of the appeal to produce the warrant establishing the Native Courts of Ede and Ejigbo was refused. A fresh ground of appeal saying that the learned trial Judge should have held that Exhibit A the judgment of the Native Court of Ede was misconceived and erroneous having regard to the form and substance of the proceeding therein and failed to take into account the fact that suits 14/50, 139/50, 3/52, 553/52 (as well as 5/55) all related to the same land was allowed.
It will be noted that this fresh ground of appeal is the same as ground 2 of the grounds filed, but in more detail.
As to ground 1 the judgments referred to in this ground are judgments by the resident in appeal (No. 3/52), Exhibit D, and the Lieutenant Governor No. 553/52, Exhibit E, between the parties. There had been a claim by Raji Onto Oni Kekere the respondent in this appeal against Olawumi Abogunde the appellant for an injunction and damages for trespass (Exhibit C). The Native Court gave judgment for the plaintiff and this was upheld by the Native Court of appeal.
On appeal to the resident he dismissed the appeal but gave title to the land to the defendant.
On a further appeal to the Lieutenant Governor he varied the Resident’s judgment by striking out the words “granting title to defendant.”
In my view there is no Estoppel created by any one of these judgments in the subsequent claim by defendant/appellant for declaration of title to the same land and this ground of appeal must fail.
As to ground 2 and the fresh ground of appeal. Exhibit A was a claim for declaration of title transferred from the Ejigbo Native Court to the Ede District Council Court, this is clear from the judgment.
It was a trial by a Native Court in a matter between natives and both parties seem to accept the procedure adopted. I cannot agree that the judgment was either misconceived or erroneous and this ground of appeal must also fail.
As to ground 3. There is nothing in the record to show that the Ede District Council to which the case was transferred for rehearing by the Oshun Divisional Appeal Court had no jurisdiction to hear the case. The appellant did not appeal against the judgment in Exhibit A, it was a judgment against which he could have appealed, the judgment says so, but instead of appealing he issued out this action in the High Court.
In Bader Boe v. Habib Mexican Noordin and others, 1909 A.C.623 it was held that “It is not competent for the Court, in the case of the same question arising between the same parties, to review a previous decision not open to appeal. If the decision was wrong, it ought to have been appealed from in due time.”
In my view, therefore, the judgment in Exhibit A between the parties for the same land and the same claim stands and, therefore, the plea of Res Judicata was rightly upheld.
The third ground of appeal also fails.
In my opinion the appeal should be dismissed with £32 costs.
DE LESTANG, Ag. F.C.J.: I concur.
COUSSEY, Ag. F.J.: I concur.